I was born in 1945 in San Francisco. It was only in 1948 that the California Supreme Court struck down the statute forbidding interracial marriage. In my lifetime, where I lived, such an ad might have been cause for prosecution for an offense against public decency.
It is easy today to look at those who presume to rule the nation, and despair. “I don’t know what I’d do if Bush gets back in,” a young woman says to the 71-year-old Nathan Zuckerman in Philip Roth’s new novel, Exit Ghost. It’s 2004, Election Night. “It’ll be the end of the road for a whole way of political life… I don’t think I could live with it.” “It’s a flexible instrument that we’ve inherited,” Zuckerman says. “It’s amazing how much punishment we can take.” “Have you ever lived through an election like this one? With the magnitude of this one?” the woman says. “Some,” says the old man.”
Is it true? It can be hard to wish away the fear that we have reached the limit or gone beyond the point where what is broken can be put back together again. Those who rule are not democrats in any sense. They are autocrats. Government of the people, by the people, for the people is for them an offense, if not a joke. “Many of the people at that convention, for all their flag-waving, hate America,” Paul Krugman wrote in The New York Times in 2004, on the occasion of the Republican National Convention in New York. “They want a controlled, monolithic society; they fear and loathe our nation’s freedom, diversity and complexity.” But this has always been the American fact.
I keep thinking of the woman and the man in the ad for sheets, and I know that by law and by custom—in terms of enfranchisement, fair trials, lynching, restrictive covenants, gender discrimination, abortion rights, censorship, the criminalization and shunning of gay people, and on and on—the United States is more free today than at any time in our history. Throughout the 19th century and well into the 20th, the Bill of Rights was a dead letter; the history of the American 20th century is in many ways the story of the remaking of the nation in the mirror of the Bill of Rights. It is the story of previously enslaved, excluded, marginalized, degraded, and despised people refusing to settle for anything less than full citizenship, and achieving it—a story of people sacrificing their lives, their fortunes, and their sacred honor to prove that life, liberty, and the pursuit of happiness were at once a genie that could never be put back in a bottle and a promise all Americans must keep for themselves.
Today, all of this is up for grabs. That is the nature of America: For every battle carried forward, none is ever settled.
Had those who drew and ratified the Due Process clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities,
wrote Justice Anthony Kennedy in 2003 in Lawrence v. Texas, the decision that invalidated the Texas statute criminalizing sex between men,
they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
That is our birthright and our burden.
The Atlantic, November 2007